S v Yunhua (Criminal Case No. 5 of 2025) [2026] MWHCFin 2 (16 September 2026)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI FINANCIAL CRIMES DIVISION CRIMINAL CASE NO. 5 OF 2025 BETWEEN: THE REPUBLIC -VS- LIN YUNHUA CORAM: THE HONOURABLE JUSTICE R.E. KAPINDU, PhD Mr. C. Khunga and Ms. N. Nundwe, of Counsel for the State. Mr. P. Nkhutabasa and Ms. V. Banda, of Counsel for the Applicant/Accused Person Mr. F. Dzikanyanga, Court Reporter/Official Interpreter. Mr. Mike MacKenzie (Chinese Interpreter) Ms. E. Lupwayi and Mr. Chrispin Jordan, Court Reporter. RULING KAPINDU, J 1. The Accused Person herein, Mr. Lin Yunhua, who is also the Applicant in the instant matter, is currently facing trial before this Court on various charges of corrupt practices under the Corrupt Practices Act (Cap. 7:04 of the Laws of Malawi) (the CPA). The charges he faces include corrupt practices with public officers, contrary to Section 24(2) as read with Section 34 of the CPA; abuse of office, contrary to Section 25(2) as read with Section 34 of the CPA; and abuse of public office, contrary to Section 25B(2) as read with Section 34 of the CPA. : . He is currently detained at Dedza prison on remand pending conclusion of his trial before this Court. . It is significant to mention that Mr. Yunhua is also a convict. He was convicted for having committed wildlife offences relating to the prohibited possession of listed wildlife species without a licence, contrary to section 86(1) of the national Parks and - Wildlife Act, as read with Section 110B of the same. . He was sentenced to 14 years imprisonment with hard labour for those offences by the Chief Resident Magistrate Court at Lilongwe in September 2019. He served out that rather long sentence, due largely to a number of sentence remissions and a resultant presidential pardon that he received in July 2025. The charges that he is currently facing before this Court, in their fundamental essence, relate to his alleged attempts through senior prison officials, to influence the presiding officer, namely the Chief Resident Magistrate who tried him, during his trial on the wildlife offences above-mentioned, so that she could give him a more lenient sentence. . There are also other charges that he is facing on or.connected to alleged abuse of office as stated in paragraph 1 above. . On the 7% of August 2026, Mr. Yunhua brought an application before this Court in which he was principally secking to be discharged from the present criminal proceedings on the basis that, according to him, the State was no longer willing to prosecute him. . In the alternative, he seeks in that application to be released on bail pending conclusion of the matter before this Court. 9. 10. 11. 12. 14. Hearing of the application commenced in open Court on the 20" of August 2026. At the start of that hearing, learned Counsel for the Applicant, Mr. Powell Nkhutabasa, informed the Court that the application was supported by an Affidavit sworn by Counsel Vaida Banda, and Skeleton Arguments, which he duly adopted. Before proceeding, however, he yielded to Counsel Chrispin Khunga of the Anti-Corruption Bureau (ACB) (the State), who sought to raise a preliminary matter concerning the State’s present position with regard to the Accused Person’s application for a discharge. Counsel Khunga informed the Court that, following this Court’s earlier Ruling of 13% July 2026 concerning an application brought by the Prosecution to withdraw the matter, the State was now reviewing the prosecutorial future of the whole case. Counsel for the State submitted that until that review is concluded, the State will not be in a position to definitively support or oppose the Accused Person’s application for discharge. Accordingly, Counsel sought an adjournment in respect of that limb of the application. I'should quickly mention here that before Counsel Khunga could proceed much further with his representations, after he stated that he was adopting Counsel Ngwambula Nundwe’s Affidavit of 20" August 2026 in support of the State’s position, the Court stopped him' for some clarifications. The Court drew Counsel’s attention to the existence, on the record, of two affidavits, filed on behalf of the State, that seemed to be deposing to two conflicting, or indeed diametrically opposed positions. . The first Affidavit, which was filed on 18" August 2026 and sworn by Counsel Peter Sambani, expressly indicated that the deponent had obtained instructions from the Acting Director General of the ACB, and he proceeded to set out the substance of those instructions. Observably, on its face, that Affidavit was clearly not only one in opposition, but in fact in firm opposition to the Accused Person’s application for discharge. A second Affidavit was subsequently filed on 20" August 2026, sworn by Counsel Ngwambula Nundwe, again stating that the deponent was acting on the specific directions of the Acting Director General of the ACB. 15. 16. 17. 18. 19. As stated earlier, the Court noted that this later affidavit appeared to advance a position that was diametrically opposed to that adopted in Counsel Sambani’s earlier affidavit, and yet the latter did not, in its text, expressly refer to, explain, qualify or withdraw the carlier affidavit. In the premises, the Court considered that this was a matter that required clarification. The Court observed that evidence that is placed before a court, and more so on oath, cannot simply be treated as though it had never been filed merely because the party concerned subsequently wishes to adopt a different position. Where a subsequent affidavit materially departs from an earlier one, it is imperative that the later affidavit should acknowledge the earlier one, and explain the reason for the changed position. This is particularly important where, like in the instant case, the two affidavits purport to be premised on instructions that are said to have been issued by the same authority, namely the Acting Director General of the ACB. Responding to the Court’s observations on this issue, Counsel Khunga began by stating that both Counsel Sambani and Counsel Nundwe, in swearing their respective aflldavité, acted on the directions of the Acting Director General of the ACB. He stated that by the time he issued fresh instructions to Counsel Nundwe to swear the second affidavit, the Acting Director General had changed the position that he earlier held when he instructed Counsel Sambani to do the same. He stated that the change in position was due to emerging facts, namely that the matter was now under review by the State. Counsel then explained that the intention of the State had been to withdraw the earlier affidavit and to replace it with the later one. He stated that the State had, however, been unable to physically retrieve the carlier affidavit from the Court file because the file was already before the Judge. Counsel stated that his intention had therefore been to inform the Court orally that the second affidavit had superseded the first one and that the first one should be ignored. ) | Counsel Khunga further explained that the change arose following what he termed as miscommunication surrounding the preparation of the first affidavit. 20. 21. 22. 23. 24. Counsel accordingly confirmed that the second affidavit represented the State’s current. position and that the State did not seek to rely upon the earlier affidavit deposed by Counsel Sambani. He therefore prayed to the Court that the State be allowed to a]dopt the second affidavit of Counsel Nundwe of 20™ August, 2026 in support of the State’s position, which prayer the Court granted. The Court nevertheless emphasised that it is good practice that, where sworn evidence has formally been placed before a court and a party subsequently seeks to retract or materially alter such evidence, it is imperative to expressly identify the earlier affidavit and formally explain its withdrawal or replacement by way of another affidavit or supplementary affidavit. That course of action, the Court noted, avoids ambiguity on the record and, more importantly, removes any possible concern arising from the existence of apparently contradiétory statements made under oath. Having received the explanation from Counsel, which the Court accepted, the Court proceeded with the hearing on the basis that the affidavit filed on 20™ August 2026 represented the State’s current position. Effectively, on the issue of the application for discharge, the State’s position was that, following this Court’s decision of 13™ July 2026, it was now reviewing the matter. The result of the review, according to Counsel Khunga, was that the State was considering various options as potential outcomes of the review process. The State might decide to proceed on the path of facilitating termination of the proceedings whether by way of entering a discontinuance under Section 99 of the Constitution as read with Section 77 of the of Criminal Procedure and Evidence Code (Cap. 8:01 of the Laws of Malawi) (the CP & EC), a discharge of the Accused Person from the present proceedings under Section 247 of the CP & EC or otherwise. Alternatively, Counsel stated, the State might, after the review, decide to continue with the present prosecution. In view of this state of affairs, the State prayed that the application for discharge herein be'adjoumed pending the outcome of the State’s review. Counsel Nkhutabasa for the Applicant stated that he had no objection to that prayer. The Court therefore granted the prayer for adjournment of the application for discharge of the Accused Person herein from the present proceedings, pending review of the matter by the State. 25. 26. 27. 28. 29. With regard to the alternative application by the Accused Person for release from detention on bail pending his trial, the State’s response was that it did not object to the application for bail, provided that the Court imposed stricter conditions that would ensure that the Accused Person was available to the Court when required. The Court reminded both parties that under Part I, section 9 of the Bail Guidelines Act, the law specifically provides that: “Notwithstanding the fact that the Prosecution does not oppose the granting of bail, the court has the duty to weigh up the personal interests of the Accused Person against the interests of justice.” In this connection, the Court reminded Counsel for both parties that both this Court, in its earlier Ruling of 7 November 2025 in the present proceedings, and the Supreme Court of Appeal, in Lin Yunhua vs Republic, MSCA Criminal Application No. 21 of 2021, a decision of 15% March, 2024 by Chikopa, JA (as he then was), previously considered and carefully weighed the issue of whether appropriate conditions could be imposed that would suffice against the risk of flight by the Accused Person, and came to the conclusion that the interests of justice firmly tilted in favour of continued detention as the Applicant herein was, in both instances, deemed to be a real flight risk. The Court thus wondered whether the parties could think of other novel conditions that would assure the Court of a firm guarantee that if set on liberty with bail, the Accused Person would no longer be a flight risk, given the previous concerns that both the High Court and the Supreme Court of Appeal had earlier expressed in respect of the personal circumstances of the same Accused Person. In this regard, the parties asked the Court foran adjournment so that they might examine the circumstances and issues considered in those priot decisions and propose novel and stricter conditions that would guard against the risk of flight on the part of the Accused Person if released from detention with bail. 30. 31 32 33. 34, 3s. 36. The parties also generally argued that the fact that the State made an earlier application for leave to withdraw the matter, which failed before this Court, and also that currently the State was reviewing the prosecutorial future of the present matter, meant that there had been a change of circumstances. After carefully listening to all the representations on the issue of release from detention on bail, the Court granted the parties the prayer to adjourn the matter so that they might have more time to prepare for their further representations on the issue. The bail hearing which had commenced on 20" August 2026 was accordingly adjourned for further hearing. It ultimately resumed-and concluded in open Court on 4% September 2026. This is now the Court’s Ruling on the applicaiion for release on bail. At the resumed hearing on 4" September 2026, Counsel Nkhutabasa for the Applicant reminded the ‘Court that the proceedings were a continuation of the Applicant’s application for bail. Counsel recalled that, at the previous hearing of 20" August 2026, the Court had invited the parties to address it further on the conditions that might appropriately be imposed were the Applicant to be admitted to release on bail. Counsel conceded that this was not the first application for bail made by the Applicant. He acknowledged that previous applications had been considered and declined, principally on the ground that the Applicant was. considered to be a flight risk. He recapped that it was against that background that the Court invited the parties to address the question of whether there were any conditions which could sufficiently address that concern should bail now be granted. Counsel for the Applicant indicated that he would not repeat the submissions previously made regarding the alleged change of circumstances, those matters having already been canvassed before the Court, and that his further submissions would, therefore, be confined to the further proposed bail conditions. In that regard, the Applicant filed a supplementary affidavit setting out a number of proposed conditions. Counsel submitted that the conditions had deliberately been 37. 38. 39. formulated in stringent terms in order to respond to the Court’s previously expressed concerns regarding the Applicant’s risk of absconding. Among the conditions proposed was that, upon release, the Applicant would reside at his daughter’s house in Area 49, Lilongwe, on a property identified to the Court as Plot No. 49/1/2217. Counsel stated that the property belonged to the Applicant’s daughter and that a Certificate of Lease had been exhibited to the supplementary affidavit. Counsel stated that the Applicant’s daughter was willing to offer her interest in the said property as collateral/security in connection with the Applicant’s bail in the event that he failed to comply with his conditions. Counsel, having adopted the supplementary affidavit, proceeded to outline its major highlights. The Court however considers it appropriate to set out the relevant part of the supplementary affidavit of Counsel Vaida Banda in full. “3. THAT this Affidavit supplements the Affidavit in support of application to discharge the Accused Person from criminal proceedings andjor to be granted bail. 4. THAT the Accused Person should be released on bail following any of the conditions below in addition to any other conditions that the Court imposes. 4.1. The Accused Person will adhere to a curfew set by the Court and must be within his residence at the curfew set. 4.2. The Accused Person should only be allowed to be visited at his residence by his immediate family at specific times of the week and day. 4.3. The Accused Person’s residence should be visited by the Police to ensure that conditions 4.1, 4.2 and 4.3 are adhered to. 4.3.1. Provided that the police shall alternate to avoid familiarity with the Accused Person 4.3.2. Provided that the police visiting and monitoring the Accused Person shall carry an audio and video recorder at all times during the visits, which shall not be switched off at any time of the visit and shall be submitted to the Court for review. 4.4. That the Accused Person should apply to this Court, and if the Court allows it, conditions may be imposed for the Accused Person to leave his place of residence for purposes of visiting the Bank, Hospital and/or any important places and events. 4.4.1. Provided that the Accused Person will include in the application the specific place where he intends to go, the specific purpose of the trip, time that he will spend at the place and the specific people he will meet at a designated place. 4.4.2. Provided also that the Accused will not be allowed to visit any other place outside Lilongwe District and the Accused Person will not be allowed to leave for his residence before 9:00 am or after 16:00 Hours. 4.4.3. Provided also that the trips will be accompanied by the Police who shall carry and wear a video and audio recorder, not be switched off during the trip, and shall be submitted to the Court for review. 4.4.4. Provided also that the Accused Person will not be allowed to carry and/or use a mobile phone during the trip. 4.4.5. Provided that the Accused Person will not make any diversions, meet and/or speak to other persons not specified in the application, and spend more time at a place than what is in the application and/or what the Court allowed. 4.4.6. Provided that the Accused Person will write a report on the trip and submit it to this Court within 24 hours after the trip. 4.5. That the Accused Person will provide sureties, one of which will be his daughter who will pledge her property Alimaunde 49/1/2217 as a guarantee that the Accused Person will appear for trial. I have attached and exhibited the certificate of lease for the property marked as VBI. 5. THAT I understand that this Affidavit shall be used in Court proceedings and I acknowledge that if I make a false statement I may commit perjury and be liable to a substantial penalty.” 40. 41. 42. 43. 44, Counsel proceeded to explain that as this supplementary affidavit was showing, the Defence was proposing that the Applicant’s residence at the property aforesaid would be subject to very'strict restrictions. Counsel further indicated that the Applicant was prepared to bear all the expenses reasonably incurred in ensuring compliance with the proposed arrangements. Counsel Nkhutabasa then referred the Court to the State’s affidavit in response to the Defence’s supplementary affidavit. He invited the Court to observe that the State was, in substance, agreeable to the conditions proposed by the Applicant, subject to certain additional or modified conditions of its own. In particular, the State proposed that visits by immediate family members should be restricted to only Saturdays and Sundays, between 9.00 a.m. and 2.00 p.m. Counsel for the Applicant indicated that the Defence would leave that proposal by the State to the discretion of the Court, and that the Applicant would abide by it should the Court consider it appropriate. Counsel Nkhutabasa also invited the Court to observe that the State had further proposed that any costs arising from police involvement, including transportation, allowances where applicable, and so on, should be borne by the Applicant. The Defence similarly indicated its willingness to comply with that requirement should the Court consider the same to be appropriate. Be that as it may, it is significant to note fhat Counsel Nkhutabasa proceeded to accept that the absence of opposition by the State to the present application did not, of itself, dispose of the application. He acknowledged that the Court indeed retaines a duty under the law to independently consider the interests of the Applicant alongside the interests of justice and to determine whether the grant of bail would, in all the circumstances, be consistent with the interests of justice. 10 45. 46. 47. 48. 49. The Defence then advanced two principal considerations in support of the application. First, it was submitted that the proposed conditions herein were sufficiently stringent to address the concerns previqfisly raised by the Court regarding the Applicant’s risk of flight. Secondly, Counsel Nkhutabasa submitted that the circumstances surrounding the Prosecution had materially changed inasmuch as, at present, the State was no longer actively prosecuting the Applicant. On the latter point, Counsel submitted that the considerations which justified keeping the Applicant in custody while the Prosecution was actively proceeding did not necessarily carry the same weight in the present circumstances. Nevertheless, Counsel maintained that the strict conditions proposed by the Defence would continue to safeguard against the risk of the Applicant absconding from the jurisdiction. Counsel for the State confirmed that the State had been served with the Applicant’s supplementary affidavit on 28" August 2026 and had filed an affidavit in response on 1t September 2026. Again, just like with the Applicant’s Supplementary Affidavit in support, I also reproduce in full, the relevant part of the State’s Affidavit in Response to the Applicant’s Supplementary Affidavit. “AFFIDAVIT IN REPONSE TO SUPPLEMENTARY AFFIDAVIT: (INTER PARTES APPLICATION TO DISCHARGE ACCUSED PERSON FROM:CRIMINAL PROCEEDINGS AND/OR TO GRANT THE ACCUSED PERSON BAIL) 1, NGWAMBULA NUNDWE, Senior Legal and Prosecutions Officer, of Anti-Corruption Bureau (ACB or the Bureau), of P.O. Box 2437, Lilongwe, in the Republic of Malawi, this 19" day of August 2026, do hereby make oath and state as follows: 1.THAT I am part of the Prosecution team in this matter, and I am duly authorized by virtue of my office to swear this affidavit. 1 2.THAT Unless otherwise stated, all facts deponed to herein are within my personal knowledge by virtue of my conduct of this case, and they are true to the best of my knowledge, information, and belief. 3.THAT I have read the supplementary affidavit of Vaida Banda filed in support of the Accused Person’s application to discharge the Accused Person from criminal proceedings and/or to be admitted to bail, and I wish to respond thereto as follows: 7.1 1 have sought further instructions from the Acting Director General of the Bureau and have been advised, pursuant to the directive from the Director of Public Prosecutions no to oppose the application for bail. 7.2 1 have therefore been advised to propose strict bails conditions for the court’s consideration. 7.3 The State does not oppose any of the strict conditions for bail proposed by the Applicant. 7.4 However, in response to paragraph 4.2 of the Applicant’s supplementary affidavit, the State further proposes that the Applicant be allowed visitation by his immediate family on Saturdays and Sundays from 9 am to 4 pm. 7.5 That in response to paragraph 4.3 and 4.4.3 of the Applicant’s supplementary affidavit, the State further proposes that the Applicant bear the cost of Police involvement, in terms of, transportation and allowances where applicable. 4 THAT 1 fully understand that this statement will be used in judicial proceedings and that I may be liable to prosecution for perjury should any statement herein be found wilfully false. 5 THAT I therefore humbly pray that both application for discharge and bail should be dismissed.” 50. State Counsel, Ms. Nundwe, drew the Court’s attention to an inconsistency in that affidavit. She pointed out that although one paragraph expressly stated that the State did not oppose the strict bail conditions proposed by the Applicant, the concluding prayer appeared to ask the Court that the application for bail herein be dismissed. 12 51, 52. 53. 54. 55. 56. Counsel clarified that the latter wording was a drafting oversight and did not represent the State’s position. The State’s position was, and remained, that it did not oppose the release of the Applicant from detention on bail, provided that the release was made subject to the conditions proposed by the Defence together with the additional conditions proposed by the State. She also sought the Court’s permission to correct the mistake in paragraph numbering so that paragraphs 7.1 to 7.5 should read as paragraphs 3.1 to 3.5 respectively. The Court granted the permission. As regards the substantive conditions, State Counsel confirmed the proposals relating: to restrictions on family visits and the Applicant bearing the relevant costs associated with police involvement in supervising compliance of the Applicant with his bail conditions. Counsel Nundwe observed that the Defence had not objected- to those proposals and accordingly left their adoption to the discretion of the Court. Counsel for the State made one further proposal. She stated that if the Applicant be admitted to bail by the Court, he should be required to report to the ACB once every fortnight. Having heard both sides and considered the affidavits and skeleton arguments filed by the parties, the Court raised a further issue for Counsel’s further reflection. The Court observed that the parties appeared to substantially agree upon-a set of highly restrictive conditions intended to address the Applicant’s perceived risk of flight. The Court therefore invited Counsel to address it on whether, when viewed cumulatively and in substance rather than merely in form, the prc;posed restrictions would effectively amount to placing the Applicant under continued detention in the form of house arrest. The Court asked whether the practical effect of releasing the Applicant from prison subject to restrictions of the nature that were being proposed by the parties would genuinely restore his liberty or- merely substitute one form of detention for another. 13 57. 58. 59. 60. 61. Counsel for the State submitted that the proposed arrangements would not necessarily amount to placing the Applicant under house arrest because the Applicant would not be subject to continuous police surveillance. On the State’s understanding, the police would not monitor the Applicant twenty-four hours a day but would become involved when he sought to leave the residence. The Court pursued the point further and invited Counsel to consider the matter against the traditional common-law conception of what imprisonment really means, namely as basically any significant restraint upon a person’s freedom of movement. The Court asked whether conditions which so substantially restricted the Applicant’s ability to leave his residence, or indeed to be visited by family and friends, could properly be characterised as conditions of liberty rather than, in their practical effect, continued detention albeit in a different form. In response, Counsel for the Applicant explained that the Defence had intentionally proposed very stringent conditions because it understood the seriousness of the Court’s concerns regarding the Applicant’s risk of flight. He stated that the object had been to formulate conditions that were sufficiently robust to address those concerns and thereby make the release of the Applicant from detention on bail practicable. Counsel then stated that the proposed conditions herein were merely proposals by the parties, and that they remained subject to the Court’s discretion. It was Mr. Nkhutabasa’s submission that, if the Court considered -any of the conditions proposed to be unduly restrictive of the Applicant’s liberty, it was open to the Court to omit, relax or substitute those particular conditions so as to strike an appropriate balance between addressing the risk of flight as feared by the Court and ensuring that the Applicant, if released from detention, enjoyed meaningful liberty. Such were the arguments advanced by the parties herein in respect of the Applicant’s bail application herein. Analysis and Determination 14 62. 63. 65. 66. 67. 68. T'have considered the application, the affidavits filed by both sides, the oral submissions of learned Counsel and the elaborate bail conditions which the parties have proposed, with keen interest and care. T would like to begin by considering the question of whether the Applicant herein presents a flight risk, particularly a risk of jumping bail and absconding from the Jurisdiction. I am mindfu] that this question is not being considered by this Court for the first time. Not only has the question previously been carefully and elaborately considered and determined by this Court, but the same has also been considered and determined by other courts at various levels of our court hierarchy. . The subordinate courts have considered the Applicant’s circumstances. They concluded that he was a flight risk. The latest of those decisions being the decision of His Worship Chulu, Principal Resident Magistrate at Lilongwe, of 15™ May, 2025, in Criminal Case No. 753 of 2024. Those proceedings were actually the present proceedings before the Accused Person — the Applicant herein, was committed to this Court for trial. The learned Magistrate accordingly declined to release the Applicant herein on bail. This very Court also considered the question of bail following another application by the Applicant filed in August 2025, leading to this Court’s elaborate Ruling of 7% November 2025 again declining bail. It is also noteworthy,-and indeed very significant, that the Malawi Supreme Court of Appeal also considered the Applicant’s personal circumstances in a prior application, and delivered a Ruling with clear reasons for declining his release on bail on of 15% March 2024. The consistent conclusion arrived at by all these courts has been that the Applicant herein presents a real risk of flight from the jurisdiction if released from detention on bail. That history, in this Court’s view, certainly matters. This Court cannot approach the present application as though the Applicant’s feared likelihood to abscond from the jurisdiction were merely an apprehension newly brought up out of speculation by this 15 Court, and by this Court alone. It is a likelihood that has been established after careful judicial assessment, reached after thorough consideration of the Applicant’s circumstances, and which has been sustained through all levels of our court hierarchy. 69. The Court is mindful that Section 10 of Part II of the Bail Guidelines Act, Cap. 8:05 of the Laws of Malawi, which deals with “Bail by the Courts”, provides that: “Where the accused has been refused bail, he or she may bring a fresh application before the same magistrate or court, or another magistrate or court, only if there has been a change of circumstances since the earlier application.” [Emphasis added by the Court] 70. The question then becomes whether anything material has changed in the present matter so as to sufficiently displace the earlier findings of this and other courts, including the Supreme Court of Appeal. 71. In my considered view, nothing of material consequence has really changefl‘ 72. In arguing that there has been a significant change of circumstances, the main point that the Applicant raises is that the State is not, as at present, any longer actively prosecuting his case. We will come to this issue later in the present Ruling for further discussion. But the Court recalls, however, that it was expressly informed by Counsel Khunga for the ACB, that the real position at the moment is that the State is reviewing the future of the matter, considering in the process whether the prosecution herein should continue or whether the State should take active steps to bring the trial herein to an early end. That is the position. 73. There is yet another reason why it is wholly unsatisfactory for the Applicant to cite the review of the case by the State as constituting meaningful change of circumstances warranting release on bail, and for the State to agree to that contention. The review of a case by a prosecutor is not some kind of extraordinary event in the normal.course of prosecutions. It is in fact part of the usual duty of any competent prosecutor to continuously review an ongoing case — basically any ongoing case, and make appropriate prosecutorial decisions resulting from such continuous duty. Some 16 74. 75. 76. 77. comparative case authorities bear this principle out. In Van Deventer v National Director ot.' Public Prosecutions NO (64268/2013) [2015] ZAGPPHC 550, the High Court of South Africa, per Matojane, J, stated that: “The review of a case is a continuing process. Prosecutors should take into account changing circumstances and fresh facts which may come to light after an initial decision to prosecute has been made.” [The Court’s emphasis] In Mohamed & 2 Others v Director of Public Prosecutions & 2 Others; Mwapashua (Interested Party), Constitutional Petition E048 of 2021 [2022] KEHC 53 (KLR), the High Court of Kenya, per Mativo, J, stated that: “The review of a case is a continuing process. Prosecutors must take into account changing circumstances and fresh facts, which may come to light after an initial decision to prosecute or not to prosecute has been made. This may occur after having heard and considered the version of the accused person and representations made on his or her behalf.” [Emphasis by the Court] Since case review is a continuous process by the prosecution in almost every case, to use the case review proces§ as amounting to a change of circumstance and therefore as a basis for the release on bail of an accused person would lead to absurd results. It would basically entail that almost no accused person would be denied bail and continue to be detained in the interests of justice because once they learn that the prosecutor is reviewing the case, they will run to Court secking release with bail on that basis, Another reductio ad absurdum there. Accordingly, I do not regard that development alone as demonstrating any meaningful change of circumstances capable of displacing the Applicant’s previously established risk of flight. It is a clear position, in this Court’s mind, that a prosecution which is under review cannot be said, by-that fact alone, to have ceased to exist. A prosecutorial review, as I 17 78. 79. 80. 81. understand it, is a process of critical and analytical consideration and deliberation. For purposes of the present matter, the very purpose of the review, as this Court has expressly been informed by the State, is to in fact determine what should happen next. Thus, until the competent prosecutorial authority makes the appropriate decision and gives legal effect to it, in accordance with the law, the criminal proceedings herein remain very much alive. Put differently, there is a clear difference between a prosecution which has been terminated on the one hand, and one whose future is being reconsidered on the other. The legal and situational consequences flowing from these two respective categories, vis-a-vis the custody of an accused person who has been found to be a flight risk, are surely different. Notably, the present case clearly falls within the latter category. Indeed, the uncertainty surrounding the future of the criminal proceedings herein at this stage, provides no sound basis upon which this Court should relax the safeguards that were previously considered to be necessary to secure the Applicant’s court attendance. At the pain of sounding repetitive, I must highlight that one possible outcome of the State’s ongoing review is that the criminal proceedings herein may be discontinued. Another, by the State’s own admission, is that the State may decide that the present trial should proceed. The Court cannot and ought not, at this juncture, seek or purport to prejudge what that prosecutorial decision will be. If, however, the latter course is ultimately taken, then it will be in the public interest that the Applicant be available-to continue to stand his trial and that the criminal proceedings be permitted to proceed to their logical conclusion. His mandatory Court attendance would therefore, in such a‘case, be required. It would, in my view, under such circumstances be unwise and imprudent of this Court to, during the State’s apparent interregnum in which it is considering what prosecutorial course of action to take in respect of an already ongoing trial, release on bail an accused person whom the courts, at various levels, have already adjudged to be a serious flight risk. I wish to emphasise here, that for this Court to knowingly assume the risk of setting the Applicant herein at liberty on bail, without any demonstrable facts showing or even tending to show that the risk of flight itself has now diminished, would constitute 18 82. 83. 84, judicial carelessness, if not bordering on judicial recklessness. The potential unwelcome consequences of such conduct are, in my view, be reasonably foreseeable. Looking at this matter further, were the State to determine, upon completion of its review, that the prosecution herein should in fact continue, only to discover that the Applicant had absconded following his release, it would be little answer to the public interest in the integrity of the criminal justice system in this country, for the prosecuting authorities to say that whilst they were reviewing the matter, they thought it wise to facilitate the Applicant’s release from detention on bail. Similarly, it would be little answer for the Cbufi to say that even though it foresaw the risk of flight on the part of the Applicant, it simply had to release him because the Applicant and the State were mutually agreed that he be released on bail. In the end, the law places on the Courts the ultimate responsibility for making a determination on the release of any accused person on bail after carefully weighing all the circumstances of any given matter. Further, the Court wishes state that it’s responsibility in proceedings such as the present is not merely to resolve a contest between the Prosecution and the Accused Person. The Court bears an independent broader responsibility to. ensure the proper and effective administration of justice. That responsibility includes ensuring, within the confines of the law, that an accused person, whose attendance is required in criminal proceedings, remains amenable to the Court’s process for as long as the proceedings against him or her are subsisting. That broader responsibility actually heightens when the decision is made by a superior Court of record that sets judicial precedent, such as the High Court. I now come to the issuc of the extraordinary severity, or stringent nature, of the conditions which both sides consider to be necessary so that the Applicant herein can safely be released from detention with bail. I must clarify here that the Court already evinced its serious doubts about the prospects of the present application given the already known and established circumstances of the accused person herein. Noting however that the parties indicated that they had not read either the Supreme Court of Appeal decision of 15" March, 2024, nor the decision of this Court of 7" November 2025, the Court allowed an adjournment so that the parties could read those and other related decisions, and come up with any proposals of reasonable bail conditions which 19 85. 86. 87. 88. they opined could perhaps persuade the Court into releasing the Applicant herein on bail. I'have had occasion to examine the proposed conditions made by both Counsel for the Applicant and Counsel for the State with scrupulous care and attention. I have looked at the proposals severally as well as cumulatively, and from every conceivable angle and dimension. The conclusion that I reach, whichever way I look at the matter, is inescapable. Taken together, the proposed conditions do not describe an ordinary regime of release from detention on bail. They des_cribe what is, in substance, alternative detention of the Applicant under house arrest. This point is, to my mind, very important. Bail is concerned with conditional liberty of an accused person (or of a person otherwise detained by the State). The primary object of granting an order of “bail” [using the term loosely as strictly speaking “bail ” refers to the conditions attached to one’s release from detention] is that the accused person be in fact released from detention. Appropriate reasonable conditions are then attached to ensure his or her attendance before the Court. If no reasonable conditions can assure the Court of his or her attendance before Court, then the interests of justice tilt against the release and the application must fail. Bail proceedings are not meant to be a process of simply morphing the nature of detention of an accused person from one form of detention into another, without his or her actual substantive release from detention. Pausing there, I think it is apposite to draw inspiration from the long-settled common- law conception of imprisonment. The classic description of what imprisonment entails is to be found in the old Termes de la Ley [ See Rastell, John. Les Termes de la Ley: Or; Certain Difficult and Obscure Words and Terms of the Common Laws and Statutes of This Realm Now in Use, Expounded and Explained (London: John Streater, James Flesher, and Henry Twyford, 1671)] and has been adopted, with approval, in Malawian jurisprudence. The essence of the definition is that imprisonment does not entail the walls of a conventional prison or a police cell or other detention centre. It really simply means, in essence, the imposed restraint of a person’s liberty. For instance, Unyolo, J (as he then was), in the case of Matanda v Sales Services Ltd and others [1990] 13 MLR 219 (HC), stated at Page 228, that: 20 “as defined in termes de la ley, imprisonment is no other thing but the restraint of a man'’s liberty whether it be in cell or in open; whether it be by a duly appointed law enforcement officer or a private person. In all these situations, the party so restrained is said to be a prisoner, so long as he has not his liberty to go freely where he wills.” 89. Likewise, in Kaisi v Registered Trustees of Blantyre Adventist Hospital [1996] MLR 97 (HC), Tembo, J (as he then was) stated, at pages 102-103, that: “Unyolo J, then as he was, in the case of Chiumia v Southern Bottlers Ltd Civil Cause No. 707 of 1989 (unreported) observed that what constitutes an arrest or imprisonment at law is well settled. He cited a classic definition of imprisonment which appears in Termes de la Rey, namely: “Imprisonment is no other thing but the restraint of a man’s liberty, whether it be in the open field, or in the stocks, or in the cage, in the street or in a man’s own house as well as in the common gaol; ... Villiera J then as he was, in the case of Sindi v Ross and Co Ltd 10 MLR 274, applied this classic definition of imprisonment. In that case, Villiera J held that the plaintiff was not a free person to go wherever he wanted...[and] that had the plaintiff refused or resisted, actual force would have been used to compel compliance on his part.” 90. The definition in the old Termes de la Ley expressly recognised that a person confined “in @ man’s own house” may, in substance, still be a prisoner depending on the circumstances. That insight is particularly apposite here. As clearly set out in paragraphs 38 and 48 of tfie present decision (above), the conditions as proposed by the parties herein, if adopted by this Court, would essentially physically confine the Applicant to a particular residence, tightly regulating and indeed restricting his movements outside that residence, subjecting such movements to strict Police surveillance and control and regular reviews by the Court, strictly restrict those who may visit him, including family members, including restricting such visits to only two days in a week and at defined times, and that when they may so visit, there be strict mechanisms for monitoring and enforcement. Clearly, in the nature of the conditions, 21 9L 92. 93. 94. if the Applicant were to refuse or resist them, instant and real-time actual force would be used by law enforcement used to compel compliance on his part. That in my considered view, is not, in any meaningful sense, a restoration of the Accused Person’s liberty subject to reasonable bail conditions. It is, as I have stated earlier, effectively the substitution of one form of detention, namely prison detention, for another, namely house detention or arrest. Tam conscious, in this regard, that it was this Court which invited the parties to consider what stringent conditions might possibly sufficiently address the Applicant’s risk of flight. The context of that invitation has already been explained above. The Court sought to know whether the parties could think of any reasonable conditions, beyond those that the Court had already considered and rejected, under which the Applicant could genuinely be released on bail whilst reasonably assuring his attendance before the Court. In doing so, the Court did not envisage proposed conditions which would essentially entail replacing conventional remand custody with a bespoke private custodial regime to be administered from the Applicant’s daughter’s private residence. There is an important difference to be drawn between imposing conditions upon liberty on the one hand, which is what the Court was envisaging, and, on the other, imposing conditions which effectively extinguish any commonsense notion of liberty. The former is the ordinary business of an order for release on bail. The latter is, in substance, continued detention called by another name. There is, moreover, a revealing feature of the parties’ common position. If both the Applicant and the State consider that only restrictions amounting to or approaching house arrest can adequately displace the possibility or risk of the Applicant herein absconding, then it means that their proposals simply confirm the respective courts’ fears, including this Court, that the Applicant herein presents a serious flight risk. The overly stringent nature of the proposed bail conditions in effect, suggest that the parties herein are saying to the Court, in essence: “the Applicant herein can safely be released Jrom prison, provided that he is not truly allowed to be free.” That conclusion would, to my mind, amount to a reductio ad absurdum. 22 95. 96. 97. 98. Another issue that I feel moved to specifically address relates to paragraph 4.3 of the Applicant’s supplementary affidavit. That paragraph proposes that the Applicant’s residence, whilst he is on bail, be regularly visited by the Police. Paragraph 4.3.2 then specifically proposes that: “the police visiting and monitoring the Accused Person shall carry an audio and video recorder at all times during the visits, which shall not be switched off at any time of the visit and shall be submitted to the Court for review.” In my considered view, this proposal reinforces rather than diminishes the Court’s concerns about the extraordinary character of the suggested bail regime for the Applicant. What is being proposed here is no longer merely a set of ordinary bail conditions that are designed to secure the attendance of the Accused Person after having his liberty restored. The proposal envisages an organised system of police monitoring and surveillance at the Applicant’s residence, the continuous audio-visual recording of those monitoring and surveillance visits, the preservation of the recordings and, ultimately, their submission to the Court for review. This is such an onerous and burdensome condition to request not only on the State, even though the State quickly agreed to it, but also, and more so, on the Court itself. Pausing there for a moment, I wish to observe that as far as this Court is aware, a bail supervision mechanism of the character being proposed by the Applicant herein has never previously been employed or tested in Malawi. The Court has not been referred, whether through the supplementary affidavit, skeleton arguménts or oral arguments, to any precedent in Malawi in which an accused person released on bail was or has been subjected to a regime whereby police officers periodically visit and monitor him or her at a private residence, carry audio and video recording equipment on them throughout those visits, keep that equipment operating continuously, and thereafter submit the resulting recordings to the Court for regular court review. I'must quickly mention here that the novelty of the arrangement is not, by itself, a reason for rejecting it. This Court would in fact be among the first to readily embrace proven innovative technological measures that would assist in the enforcement of the criminal 23 99. law in our criminal justice system. I am fully alive to the fact that courts must remain responsive to innovations that address new circumstances, so far as the law permits. But novelty, in my view, should be approached with great circumspection where the proposed mechanism is being advanced as a major safeguard against a risk which the courts have already adjudged to be existing and serious. The Court holds the firm view that before -it can responsibly direct the substitution of such a mechanism for conventional custody on remand, it must have reasonable confidence that the mechanism is workable, effective and capable of achieving the purpose for which it is being proposed. In the present case, there is no demonstrated Malawian operational history from which the Court can assess how such a regime would work in practice. The proposed scheme begs so many questions. Questions such as how frequently the police would conduct the monitoring visits, how compliance would be supervised between visits, how the recordings would be securely stored and transmitted, how frequently they would be submitted to the Court, what institutional arrangements would exist for their review, what would constitute a breach worth confronting, and how rapidly the authorities could respond if the Applicant attempted to abscond. All these are questions that would need to be properly addressed before a Court can competently make such a direction. 100. Worse still, if this Court were to impose such a measure in the instant case, it would not just be imposing an unusually stringent bail condition but, in a very real sense, it would be piloting an untested bail-supervision mechanism, given its unprecedented character in this country. It is my considered view that there may well come an appropriate case in which a Malawian Court would be invited to consider innovative forms of supervision as alternatives to conventional remand custody. This Court, by the views expressed in the present Ruling, does not seek to foreclose that possibility at all. What the Court strongly believes however, is that the Applicant in the instant case is a particularly unsuitable candidate upon whom to conduct such a pilot judicial measure. A person whom the courts, at all levels of the court hierarchy, have already concluded to be a serious flight risk would not be an ideal candidate upon whom to do that. The consequences of discovering the weaknesses of an untested monitoring arrangement only after such a person has abscqnded from the country would be obvious and potentially irreversible. 24 101. There is another aspect of this application which has also caused this Court considerable discomfort and concern. The proposed conditions which, according to both the Applicant and the State would be stringent enough to allay the fears of any risk of flight on the part of the Applicant, appear to be premised on the footing that the Applicant evidently possesses, or has access to, substantial financial resources to finance the whole arrangement. He says he is prepared to finance all the costs associated with the restrictive arrangements and the proposals herein. He goes as far as proposing, and the State agrees to this, that he bears the transportation costs associated with police involvement as well as paying necessary allowances for the officers resporisible. 102. My view is that the Court must be extremely careful about the precedent which such an arrangement would set. Bail cannot become a system under which an accused ) person, who is adjudged to be a serious flight risk, or otherwise deemed unsuitable for release from detention in the interests of justice, may nevertheless secure his or her release from prison custody simply because he or she possesses sufficient financial resources to fund an alternative, privately supported custodial option that is convenient for himself or herself. Such a scenario would, in the Court’s view, create an unfortunate and unacceptable regime of differential treatment between the affluent remand prisoner and the indigent or less affluent one. 103. A remanded prisoner who is without substantial resources but presenting precisely the same degree of flight risk- or presenting any other similar situation militating against his or her release from detention in the interests of justice, could not offer to finance police movements, electronic monitoring, private residential confinement and the other mechanisms now proposed for him or her to enjoy the same treatment by the State of an affluent remandee. He or she would therefore remain in conventional prison custody. What this scenario would essentially entail is that the risky but wealthier accused person would, in effect, buy for himself or herself, a different mode and place of detention that is different from the ordinary prisoner. 25 104. This Court cannot suffer itself to set such a precedent. The administration of the bail regime in this country must not develop into a system in which persons who present otherwise unacceptable risks, including serious flight risks, can, through private financial means, effectively pay their way out of conventional remand prison custody. 105. Further to the above concern, there is yet another practical concern. However one views this matter, effective house arrest cannot readily provide the security inherent in conventional lawful prison custody without imposing additional substantial operational and administrative demands upon the State. It would require customised monitoring, dedicated personnel, transportation, supervision, response capability and continuing administrative attention. Those demands would not disappear merely because an accused person volunteers to meet those associated financial costs which can easily be quickly quantified. Some of the qualitative demands would be real and costly, but not easily amenable to quick costing. 106. Indeed, that said, this Court has an additional worry of principle. The suggestion that an accused person, such as the Applicant herein in the instant case, should personally finance allowances payable to State security personnel such as the Police officers to be charged with the duty of supervising his own compliance, strikes the Court as particularly problematic and rather absurd. 107. To put the matter moderately, the proposition is institutionally inappropriate. The idea that Police officers, exercising coercive and/or supervisory State authority over the Accused Person, should be placed in a position in which their own allowances for performing that public function and duty are funded by the very person whom they are required to supervise, seems very ironical and indeed inimical to the ethos of any credible criminal justice regime that stands for justice, such as ours system is. 108. The suggested condition would have the effect of turning the proper relationship between the Accused Person’s compliance supervisor and and the Accused Person himself on its head. One would, in such a situation, legitimately ask the question: who exactly, in that relationship, is serving whom? Are the officers serving the State and its interests, or they are serving the interests of the Accused Person? The proposed arrangement is, with respect, so extraordinarily indefensible that it is like requiring a 26 prisoner to pay the daily subsistence allowances of the prison warders who are assigned to guard him or her, in order to prevent his or her own escape. The proposal is manifestly indefensible. 109. This Court is of the very strong view that public law-enforcement functions should remain public functions properly so-called. Their integrity should not be compromised by rendering them dependent upon the financial capacity of an accused person, more particularly one who has already been adjudged to present a serious flight risk. 110. The Court would perhaps understand a situation, even though such a situation is still much less ideal, where an accused person funds certain urgent expense items, as an isolated exceptional event, in order to effect the enjoyment of his or her own justifiable human rights claims, including the right to personal liberty, where the State lacks the urgent means to give effect to the same. As I have stated, this too is less than ideal, it is to be discouraged, but it may be tolerable. In the rare event where the same is to happen, it should not be designed in a manner that becomes a permanent or indefinite arrangement. It should be an urgent, exceptional and justifiable instance of giving effect to rights which the State fails to immediately give effect to due to resource constraints. Freedom that is guaranteed by the State should not, as a general rule, be, in essence, privately bought at a price. 111. The current situation therefore, where the Accused Person basically suggests funding a customised form of detention for himself as a means of allaying the Court’s own fears that he is a flight risk, is unacceptable. 112. The Court thus reiterates its finding that no amount or set of reasonable conditions for bail would suffice to displace the Applicant’s flight of risk in the present case. Even elsewhere, such as in the United States of America, in instances where Courts have come to a conclusion that no condition or combination of conditions will reasonably assure the Court of the availability of the accused person for trial if released on bail, or indeed where the risk is that of bcingi a danger to the community that no condition or combination of conditions will reasonably assure the Court of the safety 27 of the community from the danger posed by the accused, courts have ruled that such an accused person must remain in prison custody, and attempts at imposing overly onerous conditions such as those proposed in the instant case have been set aside. An instance is the case of United States of America v Tortora, a decision of the United States Court of Appeals, First Circuit, 922 F 2d 880, of 27™ December 1990, where the defendant was an alleged member of an organised-criminal group. He was charged with offences under the Racketeer Influenced and Corrupt Organizations (RICO) Act. The charges included extortion and other financial crime charges. The evidence gathered included evidence of his violent criminal history, offences committed while on parole, and an oath of allegiance to a criminal organisation. A magistrate ordered his pre-trial detention, finding by clear and convincing evidence, that no condition or combination of conditions would reasonably assure the safety of the community from the accused person. Upon review however, the District Judge requested the Appellant to produce specific release proposals that would assure the safety of the community. Upon receiving the proposals, the District Judge found that the suggested conditions reasonably assured the safety of the community and adopted them. He did not receive new evidence, nor did he reject the magistrate’s earlier findings. He nevertheless ordered the defendant’s release based on the fresh conditions as adopted. The release conditions adopted by the district Judge included: “that the appellee not violate the law, appear at scheduled proceedings, eschew possession of weapons and substance abuse, restrict his travel, etc.—-the court’s order required the appellee to (1) remain at home twenty-four hours a day, except for a reasonable number of visits to doctors and lawyers, wearing an electronic bracelet; (2) refrain from communicating with any person not approved by the prosecutor and defence counsel; (3) meet with co-defendants only in the presence of counsel for the purpose of preparing a defence; (4) allow only one telephone line into his residence, hooking it up to a pen register; and (3) post the residence--a house owned by his brother (who, apparently, agreed to execute the necessary documents)--as security.” 28 116. 117. The Government appealed against the District Judge’s decision. The United States Court of Appeals, First Circuit, reversed the District Judge’s decision. Among other things, the Court of Appeals held that home confinement, controlled visitors, a contact log and monitoring of one telephone line could readily be evaded and depended substantially on the defendant’s good-faith compliance, and that this was an assumption that was contradicted by the available evidence. 1 reference this decision as one of those decisions from other jurisdictions that show that Courts have not been easily moved by proposals of conditions that suggest that the only way to displace the risk of flight of an accused person seeking bail, or to protect the community from an accused person seeking bail but who has a proven history of criminality and dangerousness, is to release such accused persons from prison custody and confine them to their homes under very strict conditions. Such decisions as United States of America v Tortora thus buttress this Court in its findings vis-a-vis the present application. Finally, having stated all the above issues in declining the Accused Person herein release from detention on bail, I must mention that it is not lost on this Court that all the surrounding circumstances of the present matter indeed seem to suggest that the State has grown cold feet about the active pursuance of the criminal proceedings herein against the Applicant. They first brought an application, albeit legally incompetent, to withdraw the current proceedings. Reasons for the Court’s rejection of that application are contained in the Court’s decision of 13 July 2026. The State’s intention however was more than clear. In the present application, after the Applicant sought a discharge from the present proceedings based on the intent apparent from the State’s July 2026 application, and in the alternative sought to be released on bail, the State’s response has been to request this Court to pend its determination of the application for discharge so that the State may review the future of the criminal proceedings, and to actively support the application for release of the Applicant on bail pending such review. This is indeed clear evidence of, at the least, reluctance to actively pursue the proceedings. 29 119. ‘Whether the State’s hesitation or reluctance to actively pursue the Applicant’s prosecution herein is justified or not is not for this Court to determine at this stage. The Court respects the fact that prosecutorial decisions belong in the pre-eminent domain of the constitutionally and statutorily competent prosecutorial authorities in the Executive, with the Director of Public Prosecutions having final prosecutorial authority. 120. The Court thus urges the prosecutorial authorities to study the applicable law, carefully assess the evidence and the public interest, and make whatever prosecutorial decision the law and their independent judgment require, expeditiously. The State must not continue to' prevaricate on its position. Certainty in the future of the present proceedings is paramount. Such certainty is appropriate both in the public interest as well as in the interests of the fair trial rights of the accused person who also has the constitutional right to a speedy trial. 121. If the State opines that the prosecution of the Applicant in this matter remains sustainable, and that the public interest requires its continuation, the State should quickly and boldly make the decision and continue to prosecute the matter with the diligence and industry expected of an impartial and competent prosecuting authority. 122. If, on the other hand, the State forms the view that the prosecution of the Applicant is no longer legally or evidentially sustainable, or is otherwise not in the public interest, the State should again be bold and take the appropriate steps, as prescribed by law, to give effect to such a determination, subject of course to applicable constitutional safeguards for accountability. 123. Wl)lat this Court finds unsatisfactory though, is a situation where the State seems to take an indefinite middle position in which the prosecution of the Accused Person herein is being kept legally alive while the State’s uncertainty about whether to continue to pursue it or not is then advanced, with the clear acquiescence of the State itself, as a basis for seeking to relax the bail safeguards that were already previously adjudged by the courts as being necessary to secure the Applicant’s continued attendance before the Court, 30 124. The State must make the prosecutorial decision or decisions which belongs or belong to it, as the case may be. This Court already clearly stated this in the Court’s decision of 13% July, 2026 when it declined an application to withdraw the proceedings. With the Court’s clear decision in that case, I find it rather strange that both the State and the Applicant still seem keen to continue to square around the Court on this matter without an apparent clear direction. 125. These are criminal proceedings and not some species of non-contentious proceedings. Let the State take the prosecutorial decisions that belong to it; and let the Court assume its rightful judicial function of determining the real issues that are in dispute in the said proceedings. I find it inappropriate for the State to effectively invite the Court to assume the risk associated with releasing an accused person on bail who was alrea&y judicially determined by both this Court and the Supreme Court of Appeal to be a serious flight risk, and then, at the same time, behave in a cagey manner with regard to making the appropriate prosecutorial decisions that reflect their true intentions. 126. One point I must state here is that in fact, during the hearing leading to this Court’s decision of 7% November 2025, the State itself was particularly emphatic that the Applicant herein is a serious flight risk. At paragraph 25 of the Ruling, the Court stated that the “The State contends that the Applicant herein remains a serious flight risk.” T have not heard the State, in the entirety of the present proceedings, mention that they have now changed their mind and that, in their assessment, the Applicant herein is no longer a flight risk, and giving the reasons for the change of mind. All I hear the State say is that, first, they do not oppose the present application and, secondly, that they agree with the proposals as to bail conditions made by Applicant, and then suggesting a few additions of their own. 127. If the State believes that the Applicant is no longer a flight risk, they should have come out very clearly and state under oath by way of affidavit, that they now believe that the Applicant is no longer a flight risk. If they still believe that he is a flight risk, then the State should have clearly explained the justification for, in one breath, saying that the Accused Person is a flight risk, and in the same breath saying he should be released on bail. That would, in itself, be a rather novel position to be adopted by the 31 State, and whose reasoning the Court would have loved to appreciate more deeply. It seems to me the State has left some issues relating to their position in this matter unsaid, and that, ultimately, does not help matters for the Applicant either. 128. All in all, the Applicant’s application for release from detention on bail herein must be and is hereby dismissed. The Applicant shall remain in custody on remand under the Malawi Prisons Service as before, pending the further conduct and/or lawful determination of the criminal proceedings herein. 129. I set down the 16™-17" days of November 2026 for continuation of trial. 130. It is so ordered. Delivered at Lilongwe this 16" day of September, 2026. R.E. Kapindu, P) JUDGE 32